4 Reasons to Copyright Your Software

4 Reasons to Copyright Your Software

by Joe Runge, Esq., November 2016

What do computer software, modern sculpture, and the instructions on a shampoo bottle have in common? They all can be protected under U.S. copyright law. Copyright law is robust and able to protect a wide range of human creative activity. Understanding how it works is essential for artists, writers, and programmers.

Just like a story or a picture, computer code is a creative expression of an author. There are many important reasons why a programmer might seek copyright protection. Here are four reasons why—and one reason why not—a programmer should copyright software.

1. The Code Matters

There may be a dozen different ways to code a solution for a problem or there may be only one. Your code may be the only way to connect two databases. It may be the best way to identify a very subtle signal in a set of data. Your code may be the essential part of what makes a product, an application, or even a garage experiment, work. Just like the words of a story or the strokes in a painting, your code is a creative work that belongs to you.

The code matters. It may be the only way to solve a problem or just a really good one. Once you have the code, your solution can be implemented by other programmers, improved upon, and made part of other projects. If you can control, through legal action, who can use the code and who cannot, then you have real ownership over your creation.

2. Give the World Notice

Copyright is inherent—meaning that it automatically vests with the author when a work is finished. As soon as the word is on the page, the image on your SD card, or the code in the compiler, it is yours, but that doesn't mean someone else can't make it, too.

A copyright is just that—a right to control who copies your work. It does not stop others from creating the same work. The code that you just wrote could also be created by another programmer in a similar circumstance. The software copyright only stops another programmer from copying your work. If she independently produces the same code without access to your original work, then you may not have any recourse.

If, however, you register a copyright with the U.S. copyright office, then the whole world is on notice that this code is yours. That programmer who independently wrote "your" code is not off the hook. You no longer have to show that she had access to or otherwise copied your original work. Once your copyright is registered, your ability to enforce it is stronger.

The federal government makes online tools available to register copyright. LegalZoom makes those tools easy to use, helping you put the world on notice and keep your code your own.

3. Enforce Your Rights

In addition to making it easier to prove infringement of your copyright, registration also makes it easier to recover damages from infringers.

A registered copyright is eligible for statutory damages, which are set by a judge. Instead of showing the actual cost of the infringement, a judge sets a dollar amount for each infringement.

Statutory damages can be as high for $150,000 per infringement. With software distribution being easier than ever, statutory damages are an enormous consideration, and copyright registration is a compelling consideration. Copyright, however, is not purely about excluding others and monetizing your code.

Copyright is about ownership, not just about money. A programmer can certainly sell his code, but he doesn't have to. The code is his to do with as he likes. To fully control the code he created, software copyrights can really help the programmer.

For example, you may develop a new program that is effective for tracking small objects using integrated, low-orbit satellite images. Your intended use for the software is to better manage animal populations on federal lands, but anyone could modify your code easily and then use it to track anything, including people. Copyrighting software may be the best way to ensure that what you create is used in a way you believe.

Because you are a fervent believer in personal liberty, you want to prevent the use of your software to track people. Copyright protection gives you a means to do that. You can give the software away, for free, but require users to sign a contract that limits their rights to tracking animals for land management. If your users fail to abide by the terms of the contract, then you can sue them for breach of contract—and for copyright infringement.

One Exception: Keeping Your Business Private

Twenty years ago, software came in a box. Today, most applications do not come on a pile of floppy disks. People buy software over the internet, through online app stores, and as part of subscription-based services. Whether or not to register your code is subject to different considerations for each kind of business.

If customers buy your software and install it on their computers, then registering your copyright makes sense. The code is already public and can be reverse engineered. If, however, your code resides on a secure server and customers do not directly access it—as with an online data analytic service or financial model provider—registering your copyright may be a bad idea.

Copyrighted software requires the author to provide an example. That example will be available to anyone who seeks it at the Library of Congress—including your competitors. If you copyright your software, then you will make a portion of your source code available to the public. As you learn more about how to register a copyright for your software, be sure that the protection that registration gives is worth making your source code public.

Ready to register a software copyright? LegalZoom makes the process simple and affordable. The process begins by filling out a simple questionnaire. We'll work with your to assemble your application and file it with the appropriate government agency.